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EXHIBIT 4.3
DECLARATION OF TRUST
of
AMCV CAPITAL TRUST I
DECLARATION OF TRUST, dated as of January 12, 2000, between
American Classic Voyages Co., a Delaware corporation, as "Sponsor", Xxxxxxx X.
Xxxxxxx, as "Administrative Trustee," and The Bank of New York (Delaware), as
"Delaware Trustee" (the Administrative Trustee and the Delaware Trustee being
collectively referred to as the "Trustees"). The Sponsor, the Administrative
Trustee and the Delaware Trustee hereby agree as follows:
1. The trust created hereby shall be known as AMCV Capital
Trust I (the "Trust"), in which name the Trustees, or the Sponsor to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets
over to the Trust the sum of $10. The Trustees hereby acknowledge receipt of
such amount in trust from the Sponsor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Sponsor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. ss. 3801 et seq. (the "Business Trust Act"), and
that this document constitutes the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of
trust with the Delaware Secretary of State in accordance with the provisions of
the Business Trust Act.
3. The Sponsor and the Trustees will enter into an amended and
restated Declaration of Trust, satisfactory to each such party, to provide for
the contemplated operation of the Trust created hereby and the issuance of
Preferred Securities and Common Securities by the Trust on terms satisfactory to
each such party. Prior to the execution and delivery of such amended and
restated Declaration of Trust, the Trustees shall not have any duty or
obligation hereunder or with respect to the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain prior to such
execution and delivery any licenses, consents or approvals required by
applicable law or otherwise. Notwithstanding the foregoing, the Trustees may
take all actions they shall deem necessary to effect the transactions
contemplated herein.
4. The Sponsor is hereby authorized, in its sole discretion,
(i) to file with the Securities and Exchange Commission (the "Commission") and
to execute, in the case of the 1933 Act Registration Statement and 1934 Act
Registration Statement (as herein defined), on behalf of the Trust, (a) the 1933
Act Registration Statement, including pre-effective or post-effective amendments
to such Registration Statement (the "1933 Act Registration Statement"), relating
to the registration under the Securities Act of 1933, as amended (the "1933
Act"), of the Preferred
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Securities of the Trust, (b) any preliminary prospectus or prospectus supplement
thereto relating to the Preferred Securities required to be filed under the 1933
Act, and (c) if required, a Registration Statement on Form 8-A or other
appropriate form (the "1934 Act Registration Statement") (including all
pre-effective and post-effective amendments thereto) relating to the
registration of the Preferred Securities of the Trust under the Securities
Exchange Act of 1934, as amended; (ii) to file with any securities exchange (the
"Exchange") and execute on behalf of the Trust a listing application and all
other applications, statements, certificates, agreements and other instruments
as shall be necessary or desirable to cause the Preferred Securities to be
listed on the Exchange; (iii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as shall be
necessary or desirable to register the Preferred Securities under the securities
or "Blue Sky" laws of such jurisdictions as the Sponsor, on behalf of the Trust,
may deem necessary or desirable; (iv) to execute, deliver and perform on behalf
of the Trust, an underwriting agreement with the Sponsor and the underwriter or
underwriters of the Preferred Securities of the Trust; (v) to execute, deliver
and perform a depository agreement with the initial clearing agency, relating to
the Preferred Securities, and (vi) to apply for and obtain a tax identification
number for the Trust.
In the event that any filing referred to in this Section 4 is
required by the rules and regulations of the Commission, PORTAL or state
securities or Blue Sky laws to be executed on behalf of the Trust by the
Trustees, the Trustees, in their capacities as trustees of the Trust, are hereby
authorized and directed to join in any such filing and to execute on behalf of
the Trust any and all of the foregoing, it being understood that the
Administrative Trustee and the Delaware Trustee shall not be required to join in
any such filing or execute on behalf of the Trust any such document unless
required by the rules and regulations of the Commission, PORTAL or state
securities or Blue Sky laws. In connection with all of the foregoing, the
Sponsor hereby constitutes and appoints Xxxxxx X. Xxxxx, as its true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution
for the Sponsor or in the Sponsor's name, place and stead, in any and all
capacities, to sign any and all amendments (including all pre-effective and
post-effective amendments) to the 1933 Act Registration Statement and any 1934
Act Registration Statement and to file the same, with all exhibits thereto, and
any other documents in connection therewith, with the Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Sponsor might or could do
in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his respective substitute or substitutes, shall do or cause to be done
by virtue hereof.
5. This Declaration of Trust may be executed in one or more
counterparts.
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6. The Trustees shall initially be the only trustees of the
Trust. Thereafter, the Sponsor may increase or decrease (but not below one) the
number of trustees of the Trust by executing a written instrument fixing such
number; provided, however, that so long as it is required by the Business Trust
Act, one trustee of the Trust shall be either a natural person who is a resident
of the State of Delaware or an entity other than a natural person that has its
principal place of business in the State of Delaware and that, in either case,
otherwise meets the requirements of applicable Delaware law. Subject to the
foregoing, the Sponsor is entitled to appoint or remove without cause any
trustee at any time. The Trustees may resign upon thirty days' prior notice to
the Sponsor.
7. This Declaration of Trust shall be governed by, and
construed in accordance with, the laws of the State of Delaware (without regard
to conflict of laws principles).
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IN WITNESS WHEREOF, the parties hereto have caused this
Declaration of Trust to be duly executed as of the day and year first above
written.
AMERICAN CLASSIC VOYAGES CO., as Sponsor
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
The Bank of New York (Delaware), as Delaware Trustee
By: /s/ Xxxx Xxxx Xxxxxxxxx
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Name: Xxxx Xxxx Xxxxxxxxx
Title: Authorized Signatory
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Administrative Trustee
January 7, 2000 (9:08am)
